Justice Thomas and Senator Cruz on the Arizona Voting Law

RUSH: "Ted Cruz didn’t wait long to mount a legislative response to the Supreme Court’s ruling against Arizona’s voter registration rule. An amendment submitted by the Texas senator on Monday afternoon to the Senate’s immigration bill would 'permit states to require proof of citizenship for registration to vote in elections for federal office.' Cruz’s measure would amend the National Voter Registration Act. 'Today #SCOTUS ruled federal "Motor Voter" law preempts AZ proof-of-citizenship requirement for voter registration,' Cruz said on Twitter. 'I’ll file amendment to immigration bill that permits states to require ID before registering voters & close this hole in fed statutory law.'"

And that's a great response to this ruling yesterday. In fact, I think it's somewhat outrageous that the Motor Voter law was passed without requiring any proof of citizenship in the first place, but that was no accident. The Democrats want as many people voting as possible. What the Democrats wanted out of this was anybody can register, anybody can get on the rolls, that's what they wanted. Now, they didn't get that in the ruling, but they wanted it. They wanted anybody to go register. What's the point of motor voter? What is the point of register when you vote? What is the point of registering when you go buy milk? Just to get as many people on the voter rolls because they know that the rolls are never purged. They know that in the places they control, the polling place, they're gonna okay anybody who walks in.

Now, about this ruling? Yesterday I told you when the ruling came down that I was ill-equipped and unprepared to comment on it because it happened close enough to the start of the program that I was unable to look at the ruling, the decision, and I had only had an AP story. All I knew when the program started was that it was a 7-2 decision with Scalia writing for the majority. And, of course, I have implicit trust in Justice Scalia. So I finished the program yesterday thinking that the ruling yesterday was really not a big deal because he essentially said that there wasn't an issue here, that the states have no authority over federal elections.

But then, ladies and gentlemen, I read the dissent. The dissent was two people, Justice Thomas, Justice Scalia. If you get a copy of the concurring opinion in the sense it's a PDF file, if you start on page 25, that is the dissent written by Justice Thomas. So I read that, and glad I did. Let me read to you some excerpts. Remember, now, the ruling yesterday stated that the State of Arizona had exceeded its authority in requiring certain things to happen in registering voters for federal elections. The ruling was that the states do not have such authority.

(interruption)

Yeah, there was a dissenting opinion. Did I say the majority? No, they were the dissent, they were the two. That was just verbal dyslexia. Scalia wrote for the majority. So I read the dissent, it was written by Thomas, and it made me really thankful that I didn't jump in feet first yesterday, not knowing what this was really about. Here are the relevant excerpts of Justice Thomas' dissent.

"The voter qualifications clause provides that the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature in elections for the federal House of Representatives. The 17th Amendment, which provides for direct election of senators, contains an identical clause. That language is susceptible of only one interpretation: States do have the authority to control who may vote in congressional elections, so long as they do not establish special requirements that do not apply in elections for the state legislature. The electors are to be the same who exercise the right in every state of electing the corresponding branch of the legislature of the state. Congress has no role in setting voter qualifications or determining whether they are satisfied, aside from the powers conferred by the 14th, 15th, 19th, 24th, and 26th Amendments, which are not at issue here. This power is instead expressly reposed to the states."

So what Thomas and Alito said was that Arizona was perfectly within its rights to determine the qualifications of electors, i.e., people that vote. We're not talking about the Electoral College. Don't get confused by the constitutional language here of electors. So the dissent opinion, Thomas and Alito, made clear that constitutionally the states are within their rights to determine the qualifications of voters, i.e., prove that they're citizens. So they disagreed with the majority. And Scalia as well, Anthony Kennedy. That the states -- in this case, Arizona -- did indeed have the right to determine, to require citizenship.

"Furthermore," Justice Thomas wrote, "that the history of the Voter Qualifications Clauses enactment confirms this conclusion. The Framers did not intend to leave voter qualifications to Congress. Instead, James Madison explicitly rejected that possibility," and then he quotes Madison in Federalist number 52. "In fact, the constitutional convention did recognize a danger in leaving Congress too dependent on the state governments by allowing states to define Congressional elector qualifications without limit. To address this concern, the committee of detail that drafted Article I, Section 2, weighed the possibility of a federal property requirement as well as several proposals --" Anyway, it's a history of the voter qualification clause and how it came to be and what it means.

This is a great example of how constitutional interpretation can somehow end up being 180 degrees separate. Scalia says, "There's no issue here." The majority, no issue here. State of Arizona can't have any say-so in federal elections. Thomas and Alito said they do, and it's right there in the Constitution, that the Congress cannot determine the qualifications for voters in the states. So the remedy here is for the states just to go ahead, since most federal elections occur on the same date as state elections, what the states can do is to continue to register people according to state requirements for state elections and thereby accomplish the same objective, without saying that's what they're doing.

I guess that would be arguable, but this is a great divide, 180 degree difference in the interpretation of the Constitution. But Ted Cruz said (paraphrasing), "To hell with it. We're just gonna amend the immigration bill." He-he-he-he-he. "I'm gonna amend the Motor Voter law that permits states to require ID before registering voters and close this hole," federal statutory law.